First Amendment Protects Freedom of Speech, Not Equality of Speech

The problem for the state is that the Supreme Court has never viewed elections as some sort of board game in which the government’s job is to make all sides equal. The Court reiterated this point just three years ago in Davis v. FEC, when it rejected the so-called “millionaires’ amendment,” under which contribution limits were lifted for candidates who ran against wealthy opponents. It was a clear burden on speech, the Court held, to reward one candidate with fundraising benefits when his opponent spends what the government thinks is too much money on speech. It was also “dangerous business” for the government to act as a sort of handicapper-in-chief to ensure that elections are more competitive, fair, or equal—whatever those terms may mean.

Supporters of state funding counter that the true purpose of the programs is to eliminate corruption. But if this is true, it seems to have escaped the notice of the Arizona Clean Elections Commission, which said in a court document in 2000 that “It can not be disputed that the purpose of the Citizens Clean Elections Act is to equalize the playing field and give participating candidates equal opportunity to get their message out.” Another document created by the proponents of the Act argued that under the matching funds, “it can be argued that millions of dollars in spending never takes place.”

For more than 30 years, self-styled “reformers” have been trying to use campaign finance laws to manipulate elections according to their egalitarian dreams. This time is no different.

The First Amendment protects freedom of speech, not equality of speech. Freedom means that candidates and supporters—and not the government—decide how to run campaigns and voters decide who wins. As the Supreme Court said in Citizens United, “The First Amendment confirms the freedom to think for ourselves.”